Friday, July 13, 2018

On Wednesday the Ninth Circuit (1) affirmed a conviction for bid rigging under the Sherman Act, (2) vacated the death sentence of an Arizona state prisoner and directed the state courts to conduct new penalty-phase hearings, and (3) by a divided vote, vacated the conviction of a person convicted of traveling abroad for the purpose of engaging in illegal sexual acts. 

1. United States v. Joyce, No. 17-10269 (Murphy (CA10) with Paez and Ikuta) --- The Ninth Circuit affirmed a conviction for bid rigging under 15 U.S.C. § 1, the Sherman Act, and held that a scheme to suppress competition by not bidding on certain properties at a public foreclosure auction is a classic bid rigging scheme that is per se illegal, such that the government need not prove the existence of a particular agreement to restrain trade in order to prove a violation of the Sherman Act. 

The decision is here: 


2. White v. Ryan, No. 15-99011 (Nguyen with M. Smith and Murguia) --- A three-judge panel of the Ninth Circuit unanimously reversed the denial of a habeas corpus petition filed by an Arizona death-row prisoner, holding that he received ineffective assistance of counsel at the second penalty phase of his capital proceedings when his lawyer failed to challenge the sole aggravating factor that made him eligible for the death penalty and failed to adequately investigate and present mitigating evidence in that proceeding. The court remanded the case with instructions to grant the writ and conduct new capital sentencing proceedings in state court. 

The prosecution relied on only one aggravating factor to make the petitioner eligible for a death sentence -- that he committed the murder in expectation of pecuniary gain, here, that his girlfriend would collect proceeds from a life insurance policy that covered the victim, her husband. Counsel believed that the state supreme court had upheld this finding in the direct appeal, but that was incorrect; in fact, the basis for holding the second penalty hearing allowed counsel to present new arguments against this aggravating factor. In state postconviction proceedings, the court held that the failure to challenge this aggravating factor was not unreasonable. But the record made clear that counsel had no strategic basis for failing to challenge this aggravating factor, and that the failure was entirely the result of a misunderstanding of the reason for the resentencing hearing and of state law. 

Counsel further did not investigate the petitioner's extensive history of mental illness, which was apparent to every lawyer who had previously handled the petitioner's case. (In federal habeas proceedings, his mental illness led to competency proceedings that were ultimately mooted by the Supreme Court's decision in Ryan v. Valencia Gonzales, 568 U.S. 57 (2013).) Indeed, the petitioner's mental illness was a large part of the basis for holding a second penalty hearing. His history was well documented by the Arizona prison system as well. In finding no ineffective assistance, the state postconviction court reasoned that counsel was not required to gather records of his mental health unless there was some suggestion that they would have mitigating value. But because there was such evidence, the postconviction court could not reasonably have said that it was reasonable for counsel not to gather the records. Counsel's total failure to investigate mental health would have had an affect on the sentencing proceeding. The 12 different types of mental health evidence, considered cumulatively, were plainly relevant to the decision to impose the death penalty -- indeed, on direct appeal from the resentencing, the state supreme court had affirmed the sentence by a divided vote. 

Congratulations to Assistant Federal Public Defender Jennifer Garcia of Phoenix. 

The decision is here: 


3. United States v. Pepe, No. 14-50095 (Nguyen with Kleinfeld; dissent by Thomas) --- A divided panel of the Ninth Circuit vacated convictions for engaging in illicit sexual conduct in foreign places, in violation of 18 U.S.C. § 2423(c). The trial court instructed the jury consistent with United States v. Clark, 435 F.3d 1100 (9th Cir. 2006), which punishes those who travel in foreign commerce and thereafter engage in illicit sexual acts. After Clark, Congress amended the statute to punish those who either travel in foreign commerce or reside temporarily or permanently in foreign commerce and engages in illicit sexual acts. The court held that in light of the subsequent amendment, Clark had been overruled, and so the conviction had to be vacated because the defendant here (who had been living in Cambodia for a long time before he bought sex from several young girls, binding and drugging them in some instances in order to accomplish the sexual acts) may not have engaged in conduct that was punished by the pre-amendment version of the statute. Chief Judge Thomas disagreed that the subsequent amendment to the statute implicitly overruled Clark, and would have affirmed the convictions and 210-year total sentence because the jury instructions were proper under Clark, which was binding at the time of trial here. 

Congratulations to Deputy Federal Public Defender James Locklin of Los Angeles. 

The decision is here:


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